Defamation; Privacy; Economic Torts Flashcards
(15 cards)
A newspaper that publishes a defamatory statement made by a columnist is __________.
liable as a primary publisher.
Each individual who takes part in making the publication is charged with the publication as a primary publisher (e.g., a newspaper or TV station carrying a defamatory message would be viewed as a primary publisher and held responsible for that message to the same extent as the author or speaker).
The newspaper is not liable as a republisher or as a secondary publisher. A republisher is one who repeats a defamatory statement. A republisher usually will be held liable on the same general basis as a primary publisher. A secondary publisher is responsible only for disseminating materials that might contain defamatory matter (e.g., a vendor of newspapers, a player of a tape) and is liable only if he knew or should have known of the defamatory content. Because the newspaper is a primary publisher rather than a secondary publisher, it will be liable even absent negligence that the statement was defamatory.
At common law, the following elements were required for a prima facie case of defamation:
(i) Defamatory language on the part of the defendant;
(ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer);
(iii) Publication of the defamatory language by the defendant to a third person; and (iv) Damage to the reputation of the plaintiff.
As to (iii), the publication may be made either intentionally or negligently. As to (iv), damages is an element of the prima facie case even though in some cases damages may be presumed.
Falsity of the defamatory language is not an element of CL defamation. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern.
A defendant’s interference with the plaintiff’s business contract may be acceptable if the interference is justified by __________.
Privilege.
Privilege may make interference with a business contract acceptable. Interference with contract provides for liability if there is intentional interference by a Def that induces a breach or termination of a contract or expectancy. However, the Def’s conduct may be privileged if he is properly attempting to obtain business or protect his interests. Several factors determine whether the Def has a privilege to interfere, such as if the PL is pursuing a prospective business relationship but does not have an existing contract, or if the Def uses commercially accepted means of persuasion rather than illegal or threatening tactics.
If a defamatory statement’s publication is compelled by law, ___________________.
If a defamatory statement’s publication is compelled by law, there is an absolute privilege for the publisher. Thus, if a newspaper was compelled to print a public notice, and the notice contained a defamatory statement, the newspaper would be absolutely privileged in its publication. A report of a public proceeding is not absolutely privileged; rather there is a qualified privilege at common law. Inaccurate reports of the statements made during the proceeding are not protected. If a speaker made a defamatory statement in defense of her own actions, the speaker is not absolutely privileged; the speaker is only protected by a qualified privilege. The privilege may be lost if the statement was made with knowledge of its falsity or with reckless disregard for its truth or falsity.
Pleading additional facts to show that a defamatory statement referred to a plaintiff is known as __________
Colloquium
Colloquium involves pleading additional facts to show that a defamatory statement refers to a plaintiff. A statement may be actionable even though it has no clear reference to the plaintiff on the face of the statement. In such a case, the plaintiff must introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff. This process is called colloquium. Inducement and innuendo are not the processes used to prove that a defamatory statement refers to a plaintiff. Rather, these are the terms for demonstrating that a statement is defamatory, when it does not appear so on its face. A statement not defamatory on its face can be actionable if the defamatory meaning becomes apparent by adding extrinsic facts. The plaintiff pleads and proves additional facts, known as inducement, and establishes the defamatory meaning, known as innuendo.
What are the elements for a prima facie case of interference with business relations?
(i) The existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff; (ii) The defendant’s knowledge of the relationship or expectancy; (iii) Intentional interference by the defendant that induces a breach or termination of the relationship or expectancy; and (iv) Damages to the plaintiff.
what are the CL elements for defamation?
At common law, the following elements were required for a prima facie case of defamation: 1. Defamatory language on the part of the defendant; 2. The defamatory language must be “of and concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); 3. Publication of the defamatory language by the defendant to third person; and 4. Damage to the reputation of the plaintiff.
The right of privacy….
The right of privacy is a personal right and does not extend to members of a family. It also does not apply to corporations; only individuals may avail themselves of a right-to-privacy action. The right of privacy is NOT assignable and does NOT survive the death of the plaintiff
Qualified privilege for a defamatory statement will be lost if:
A qualified privilege will not be lost if the speaker merely bears ill will toward the plaintiff. A qualified privilege will be lost if the speaker acted with malice. At common law, many courts held that ill will of the defendant toward the plaintiff would result in the loss of the qualified privilege. Most courts, however, no longer define malice in this way. The defendant will not lose a qualified privilege simply because she bears ill will toward the plaintiff. A qualified privilege for a defamatory statement will be lost if the statement was made with knowledge that it was untrue or with reckless disregard as to its truth or falsity; this is how malice is currently defined for defamation law. A qualified privilege exists only if exercised in a reasonable manner and for a proper purpose. Thus, even though the facts might otherwise give rise to a qualified privilege situation, the actor may lose this privilege by virtue of his conduct, which includes acting with malice
Which types of invasion of privacy torts require the PL to show “publicity”?
(1) Publication of facts placing plaintiff in a false light; and (2) public disclosure of private facts about plaintiff.
Mere publication to a third person is not sufficient for liability. In contrast, invasion of privacy based on intrusion on plaintiff’s affairs or seclusion does not require either publication or publicity – just the act of intruding.
If a plaintiff is a member of a group, and a defamatory statement is made against the group, __________.
PL can recover if the group is small.
How is “actual malice” defined for purposes of the constitutional law of defamation?
(i) knowledge that the statement was false, or (ii) reckless disregard by the defendant as to the statement’s truth or falsity
What are the elements of intentional mispreprentation?
What are the elements of negligent misrepresentation?
The elements of intentional misrepresentation are: (i) Misrepresentation by the defendant; (ii) Scienter; (iii) An intent to induce the plaintiff’s reliance on the misrepresentation; (iv) Causation (i.e., actual reliance by the plaintiff on the misrepresentation; (v) Justifiable reliance by the plaintiff on the misrepresentation; and (vi) Damages.
The elements of negligent misrepresentation are: (i) Misrepresentation by the defendant in a business or professional capacity; (ii) Breach of duty toward a particular plaintiff; (iii) Causation; (iv) Justifiable reliance by the plaintiff upon the misrepresentation; and (v) Damages.
With regard to defamation, “actual injury” includes:
“actual injury” includes economic damages, mental distress damages, and reputation damages.
What are the 4 branches of invasion of privacy?
(i) Appropriation by a defendant of a plaintiff’s picture or name for the defendant’s commercial advantage; (ii) Intrusion by a defendant into a plaintiff’s affairs or seclusion; (iii) Publication by a defendant of facts placing a plaintiff in a false light; and (iv) Public disclosure of private facts about a plaintiff by a defendant.
